Legal Realists

Seek to bring the methods of social science to the study of law Generally favorable attitude toward government regulation of the economy Shifted the focus of legal study back from legislation to the judicial process

The RealistsKarl N LewellynA Realistic Jurisprudence-The Next Step

Calls Pound’s ideals about law more than precepts and standards Lewellyn disagrees in the application and calls his standard peculiarly vague and majestic scale Says Pound stresses the traditional techniques of developing and applying precepts Lewellyn theory is that law is not all, nor yet the major part of society The most significant aspects of the relations of law and society lie in the field of behavior, and

that words take on importance either because and insofar as they are behavior, or because and insofar as they demonstrably reflect or influence other behavior

The assumption is that the words do reflect behavior and the words of the rules of law influence behavior effectively and precisely to conform completely to those words

The rules lied down are ‘ought’ rules, the paper rule of ‘ought’ has now been assumed to describe the judges’ working rule of ought and further assumes to control the practice of the interested layman, to govern people’s conduct

There are rules and then there are judicial behaviors that can deviate from the rules; we must investigate this phenomenon

‘Paper’ Rules v “Real Rules’- Paper are what have been treated, traditionally, as rules of law; ie what the books say ‘the law’ is-

Real rules (rights) ‘ what the courts will do in a given case, and nothing more pretentious’ are then predictions

Categories are critcical A realist approach to categories is that the first of them rests primarily upon the knowledge that

to classify is to disturb; other rests on the observation that categories and concepts, once formulated and once they have entered into thought processes, tend to take on an appearance of solidity reality and inherent value which has no foundation in experience

Perception needs to produce the reality of the principle but care not to re-examine Laws have categories that allow us to connect them to the essence of law Envisions a divorce between the world of ‘ought’ and ‘is’: judges he suggests do not invariably

follow ‘the rules laid down’ and their decisions do not invariably govern conduct

Roscoe Pound

The Call for a Realist Jurisprudence

Every school of thought believes everyone else to be dealing with illusions and yet they are dealing with reality; thought is dogmatic belief in one way of organizing knowledge about the legal ordering of society

The Historical jurists claim the reality of experience, the analytical jurist claim on the basis of ‘the pure fact of law’, the positivists claim reality in laws of social and legal development

The new realist rejects all these conceptions of juristic reality and claim Reason is an illusion and Experience is not the unfolding of an idea

Pound addresses radical neo-realism by noting that the assumption that law is nothing but a simple aggregate of rules, is unreal because the efficiency of business, for example, in a legally ordered society is a mere aggregate of single determinations (rules)

The new realist v. Analytical Jurist- relies on an objectively scientific gathering of facts -reliance/insistence on the pure fact of law -Preconceptions merely substitute a psychological -Preconceptions determine the choice of pure must for an ethical, political or historical must Fact of fact-Psychological factors determine the reason in -Certainty, uniformity, the influence of personal Human behavior & subjective factor determine human behavior

7 Items of Realism:1. A functional attitude (ie how legal institutions work)2. Recognition of the existence of an alogical unrational, subjective element in judicial action3. Judicial role in individual cases4. No one remedy for every case (ie no straight line to justice)5 Psychology and the law6.Values, consistent with modern psychology and philosophy in conjunction with the law7. There are many approaches to realism

Karl LlewellynSome Realism about RealismResponding to Dean Pound

There is no school of Realists; A movement is not a school of thought Llewellyn describes Realists has having certain points of departure common to them all, a cross-

relevance, complementing of their varied results & a fighting faith in their methods of attack on legal problems

Common points of departure are: law is changing,, law as a means to social ends, society is changing, temporary divorce of Is and Ought for purposes of study, distrust of traditional legal rules, distrust of legal theory, narrower categories, evaluation of law terms based on its effects

Llewellyn regards the Realists views as reinforcement that the Realists are Positivists; Positivists believe the law is not right

If one’s concern is with ‘Ought’, then a bias occurs in the observation of what ‘Is’